Summary
The claimant, Bacon, was injured in a road traffic accident which occurred in Spain on 7th September 2007. The claimant sought compensation from the defendant, Nacional Suiza Seguros.
On 25th November 2009, Master Eyre held that the governing law regarding liability and assessment of damages had to be dealt with as preliminary issues. The issues were to be tried before the English High Court.
Both parties agreed that Spanish law should apply. The question were: Was the driver of the vehicle liable under Spanish law (which had to be proved as a question)? Was the applicable law to the issue of assessment of damages to be ascertained under Rome II or under the Private International Law (Miscellaneous Provisions) Act 1995? If Rome II was applicable, then the issue of assessment of damages was to be determined by Spanish law (lex causae). If not, then English law (lex fori) would be relevant. Following the hearing, the English High court took the view that “the claimant was entirely to blame for this accident” [36], so that the issue of assessment of damages did not arise. In this context, Mr Justice Tomlinson held:
“5 Evidence on the relevant content of Spanish law was provided by two practising Spanish lawyers, Senõr David Sanchez for the claimant and Senõr Luis Carreras for the defendant. Both furnished reports and gave oral evidence at the trial. Unsurprisingly there was very little difference between them in respect of this straightforward area of Spanish law. […]
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36 […] Directing myself as I understand a Spanish court would as to the approach to be adopted, my conclusion is that the claimant was entirely to blame for this accident.
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37 My conclusion on liability renders this issue academic. Since the issue was fully argued before me and in case the matter goes further I propose briefly to express my conclusion. Had I determined that the driver bore some responsibility for the accident, I would have concluded that Spanish law governs the existence, the nature and the assessment of damage, or the remedy claimed because of the applicability of Rome II.
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66 Since in the present case I have concluded that the point does not arise, I have naturally considered whether any purpose is served by my expressing my own view. If the matter is to be referred to the ECJ in any event, there will in due course be an authoritative determination. However the reference may not proceed—the action may be compromised. Out of deference to the arguments of counsel, and since my conclusion on liability may be taken further, I have decided that, having come to a conclusion on a point fully argued before me, I should express my view, which is that the Regulation achieves a clear, if arbitrary, result. Even if the point had arisen this is not a court of last resort. The question whether the matter is acte clair does not therefore arise—cf. CILFIT v Ministry of Health of Italy [1982] ECR 3415 at 3430.” [5, 36 – 37 and 66].